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TRENDS in the SOVIET REFORM of CRIMINAL LAW Kazimierz Grzybowski*

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TRENDS in the SOVIET REFORM of CRIMINAL LAW Kazimierz Grzybowski* 54he American Univeniy LAW REVIEW VOLUME 9 JUNE 1960 NUMBER 2 MAIN TRENDS IN THE SOVIET REFORM OF CRIMINAL LAW Kazimierz Grzybowski* I. THE fourteen laws adopted by the Supreme Soviet on December 25, 1958, which together have laid the foundations for the reform of Soviet criminal law and the administration of justice constitute only a first step in this direction. They must be followed by detailed statutes and codes enacted by the constituent republics forming the Union in order to complete the system of criminal law and judicial procedure for the entire country. This somewhat complicated procedure was necessitated by the consti- tutional distribution of legislative powers. Under the 1924 constitution the Union was given the right only to enact legislation outlining the general principles of criminal law, of the judicial organization and ju- dicial procedure, while the republics were entrusted with introducing specific legislation. The Constitution of 1936 concentrated all legislation concerning these matters in the legislature of the Union, which was to provide uniform laws for the entire country. In 1957 a constitutional reform redistributed the legislative powers in this respect according to the pattern of 1924.' In fact, however, the federal authorities made little use of the powers under uniform given them by the Constitution of 1936 to put the Union laws, and the bulk of Soviet criminal legislation was enacted under the rule of the Constitution of 1924. The general principles of criminal law, the judicial system, and judicial procedure in criminal matters adopted in 1924 remained in force until 1958. The act containing the general principles of criminal law also reserved to the federal government the right to legislate on crimes against the state and on military crimes al- though the Constitution of 1924 was silent on the matter and the Union possessed only specific powers. In 1924 the Union evolved a law on crimes against the state and in 1927, one on military crimes. In 1926 * Assistant Editor, Law Library, Foreign Law Section, Library of Congress. 1 Pravda, Izvestia, Feb. 10, 1957. THE AMERICAN UNIVERSITY LAW REVIEW (Vol. 9 a new code came into force for the RSFSR and served as a pattern for the other republican codes which followed later. The 1938 law on the judicial system of the Soviet Union and of the constituent republics was the only law enacted under the rule of the Constitution of 1936. Consequently, when need arose, makeshift arrange- ments were made, and new republics created in the meantime, having no right to make codes of their own, requested, and were permitted, to use the codes of other members of the Union. Kazakhstan and Kirgizia, as well as the three Baltic republics, Estonia, Latvia and Lithuania, adopted the codes in force in the RSFSR, while the Moldavian republic adopted the criminal laws of the Ukraine. Thus the fourteen laws en- acted on December 25, 1958, continue a legal order very similar to that which was in force in the formative years of the Soviet Union. There is practically no aspect of the administration of justice in crim- inal matters which has not been affected by the new set of laws. When the republican legislatures have done' their part of the work, the Union will come under a new set of rules governing one of the most important aspects of Soviet law. The extent of the reform initiated by the legislation passed on December 25, 1958, may be gauged from the listing of these various fields of legislation. New foundations were laid for the general part of the criminal codes, codes of criminal procedure and statutes on the judiciary to be enacted in the individual republics. Two laws have been enacted dealing with crimes of special interest to the Union: crimes against the state and military crimes. Two laws have been passed in order to enact in the provisions of the federal Constitution the changes introduced in the general principles of criminal law and those on the organization of courts, and articles 135 and 109 of the 1936 Constitution were properly amended. Finally a new law on military tribunals was enacted. The new laws fall into three categories. First come three statutes containing the basic principles of criminal law, of the organization of, courts, and of judicial procedure in criminal matters,2 requiring addi- tional legislative action by the constituent republics. The second group constitutes those statutes which came into force directly and uniformly throughout the Union without any additional action by the individual republics. Two statutes belong here, in line with the earlier practice established by the 1924 general principles though not authorized by the Constitution-one on crimes against the state3 and the other on military crimes.4 The statute on the abolition of the deprivation of electoral 2 Vedomosti (1959) No. 1, items 6, 12 and 15. 3 Ibid., item 8. 4 Ibid., item 10. 1960] SOVIET REFORM OF CRIMINAL LAW rightsu and another on changes in the election of the people's courts,6 which is connected with the new basic principles of the organization of courts, belong to the same category. Another law which went into effect immediately is the statute on Military Courts.7 The balance is made up of six statutes containing formal and transitory provisions for the interim period before the new regime in the Soviet administration of criminal justice is fully estab- lished." II. Theoretically, with the exception of the general part, each criminal code of a constituent republic functions as an independent piece of legislation. The general part of each code consists of the general prin- ciples of 1924, which outlined the scope of penal legislation and the basic rules of the criminological policies of the Union and its parts. In fact, however, a high degree of uniformity prevails also as regards the pro- visions of the special part of each individual code with the result that it is possible to consider the provisions of the 1926 Code of the RSFSR as representative of the criminal law in force in the entire Soviet Union. In the first place, the Russian component of the Soviet Union covers an overwhelming part of the Union. In the second, the 1926 Code served as a model for the legislation of other republics which were entitled to enact their own legislation, and was copied with practically no important changes or additions. Consequently it is possible to refer to the provisions of the 1926 Code of the RSFSR as provisions of Soviet criminal law, although the Code as such is in force in only a part of its territoryf The statutes of December 1958 came into being as a result of the keen sense of dissatisfaction with the state of criminal law in the Soviet Union. The Code of 1926, conceived as a daring experiment in legis- lative techniques and a novel approach to the problems of criminal repression, was not a success. It failed to provide a basis for the orderly administration of justice in the Soviet Union, although not solely owing to its own defects. Constantly amended with inexpertly prepared inser- tions, it quickly became a shapeless mass of penal provisions lacking a central idea and even a formal order. It also failed as the expression of a theoretical formulation. The Code of 1926 dearly bears the marks of an effort to clothe it in a terminology suggestive of the teachings of the Italian Scuola Positiva, 5 Ibid., item 7. 6 Ibid., item 13. 7 Ibid., item 14. 8 Ibid., items 6, 9, 11, 12, 14 and 15. 9 Cf. Piontkovskii and Menshagin, Kurs Sovetskogo Ugolovnogo Prava (1955), Vol. I, pp. 67 ff. THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 9 and in particular, of those of its founder, Enrico Ferri. Ferri, who became familiar with only the general part of the 1926 Code, was con- vinced that it truly reflected the basic principles of his teaching, in particular as his somewhat superficial impressions were confirmed by Rakowski, the Soviet representative at the Criminological Congress of Geneva (1926), who informed him that the drafters of the Code were influenced by Ferri's draft of 1921.10 The discussion concerning the reform of Soviet criminal law started on the morrow of the enactment of the Code of 1926.11 In the beginning the tendency was to seek solutions peculiar to Soviet conditions, provid- ing for maximum flexibility and minimum restrictions in the prosecution of crimes against the new Order. 2 A more conservative trend set in later. The Constitution of 1936 encouraged Soviet lawyers to demand greater stability in Soviet laws and more respect for the rights of the individual. More attention was paid to the work of Soviet courts and the juristic aspects of the Soviet administration of justice. In 1939 a new draft of the criminal code was prepared. 3 The deaths of Stalin and Vyshinski increased the chances of reform. In 1956, the academician Orlowski came out with a criticism of the Soviet legal system in general for its "lack of order in legislation, ab- 10 Enrico Ferri, "II principio di responsibiliti legale nel nuovo C.P. Russo (1927) e del progetto del Cuba (1926) in VII La Scuola Positiva, Rivista di Diritto e Procedura Penale (1927), pp. 384-390. In this connection Ferri stated the basic principles of his school and the purpose of criminal repression to be expressed in the "principle of legal responsibility for all delinquents, regardless of their physical condition, thus making no distinction between punishment and security measures, maintaining that different physical-psychic conditions (mental infirmity, minority, inclination to crime, habitual delinquency, passion,
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